Punjab-Haryana High Court
Rajinder Singh vs State Of Punjab & Others on 5 January, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
C.W.P. No.291 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.291 of 2012
Date of Decision: 05.01.2012
Rajinder Singh ...Petitioner
Versus
State of Punjab & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr. Atul Lakhanpal, Senior Advocate, with
Mr. Arjun Lakhanpal, Advocate, for the petitioner.
HEMANT GUPTA, J.
Challenge in the present writ petition is to sub Rules (3) & (4) of Rule 31 of the Punjab Apartment and Property Regulation (First Amendment) Rules, 2010 (for short 'the Rules') and the notification dated 15.04.2011 (Annexure P-5) fixing fee for compounding the offences as ultra vires of the provisions of the Constitution of India.
The brief facts are that the petitioner is said to have sold the plots to the various persons and has executed sale deeds on completion of payment in the year 2000-02. An FIR dated 05.12.2002 (Annexure P-1) stands lodged against the petitioner under Sections 3, 5, 8, 9, 14(i), 15 & 18 of the Punjab Apartment and Property Regulation Act, 1995 (for short 'the Act'). Thereafter, the petitioner is said to have made a representation for compounding of the offence on 21.02.2003 for the reason that the plots have been sold prior to the coming into force of the Act.
For the purpose of adjudication of the present petition, Section C.W.P. No.291 of 2012 2 38 of the Act, contemplating compounding of the offences; the relevant extract of the Rules; and the notification prescribing the fee for compounding the offences, are reproduced as under:
Section 38 of the Act:
"38. Prosecution and composition of offences - (1) No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the competent authority or any person authorized in this behalf by the competent authority.
(2) The competent authority may, either before or after the institution of the proceedings for prosecution, compound any offence punishable by or under this Act subject to such conditions and restrictions as may be prescribed. (3) Where an offence has been compounded, the offender, if in custody, shall be released and no further proceedings shall be taken against him in respect of the offence compounded."
Rules as amended vide Notification Dated 9th December, 2010:
1. Short title and commencement - (1) These rules may be called the Punjab Apartment and Property Regulation (First Amendment) Rules, 2010.
(2) They shall come into force on and with effect from the date of their publication in the official Gazette.
2. In the Punjab Apartment and Property Regulation Rules, 1995 (hereinafter referred to as the said rules), in rule 2, after clause (f), the following clause shall be added, namely:-
"(g) 'Un-authorized Colony'means a colony which has been developed in contravention of the provisions of the Act and the rules made thereunder."
3. In the said rules, after rule 30, the following rules shall be added, namely:-
"31. Compounding of offences - (1) Notwithstanding C.W.P. No.291 of 2012 3 anything contained in these rules, the competent authority on an application, made by the promoter in Form APR-V-A, may, either before or after the institution of the proceedings for prosecution, compound an offence of developing an unauthorized colony. (2) On receipt of an application under sub-rule (1), the competent authority may, if it deems proper, compound the said offence on the fulfillment of following conditions and restrictions by the promoter, namely:-
(a) that the promoter first of all, shall obtain a license in accordance with the provisions of the Act and the rules made thereunder;
(b) that the unauthorized colony should not fall within the distance of sixteen kilometers from the outer boundary of Union Territory of Chandigarh;
(c) that the promoter shall submit to the competent authority, the proof of absolute ownership of the land, on which unauthorized colony has been developed by him, from the concerned authority; and
(d) that the land on which unauthorized colony has been developed, is in comformity of development of the colony with neighbouring areas.
(3) For compounding an offence in the case of an unauthorized colony, developed before the 17th day of August, 2007, in addition to the conditions and restrictions, specified in sub-rule (2), the following conditions shall also be fulfilled, namely:-
(a) the promoter shall deposit such fee by way of demand draft, as may be determined by the State Government from time to time by notification in the official gazette by taking into consideration all relevant aspects;
(b) the width of the access road to such colony shall not be less than thirty-five feet;
(c) the width of the internal roads in such colony shall C.W.P. No.291 of 2012 4 not be less than twenty-five feet;
(d) in the layout plan of such colony, the land reserved for roads, open spaces, schools and public and community buildings and other common purposes, shall not be less than thirty-five percent of the gross area of such colony; and
(e) such colony must have a site for water works and Sewage Treatment Plant or it should have been linked with the water supply and sewerage laid down by a local authority in the area of such colony."
Notification Dated 15th April, 2011 No.S.O.00/R.31/1995/2011 - In pursuance of the provisions of clause (a) of sub rule (3) and sub-rule (4) of rule 31 of the Punjab Apartment and Property Regulation Rules, 1995, and all other powers enabling him in this behalf, the Governor of Punjab is pleased to determine the following rates of fee, for compounding an offence in the case of unauthorized colonies, developed before, and after the 17th day of August, 2007, namely :-
A fee for compounding an offence in the case of unauthorized colonies developed before the 17th day of August, 2007 :-
Sr. Kind of Area Compounding Other Charges
No. Fee
Area falling within Rs.40,000/- per Rs.400/- per sq. the jurisdiction of gross acre yard for the GMADA but outside saleable area 16 K.M. Of U.T. Chandigarh Boundary xxx xxx xxx The primary challenge of the petitioner is fee fixed for compounding of offences. It is contended that Section 38 of the Act contemplates compounding on payment of fee and such payment having been fixed at Rs.40,000/- per gross acre in the notification dated C.W.P. No.291 of 2012 5 15.04.2011, the other charges i.e. at the rate of Rs.400/- per sq. yard, is beyond the legislative mandate. It is further contended that such fee is unreasonable, as a person, who is alleged to have carved out unauthorized colony, is still liable to pay external development charges. Therefore, the compounding of offences on payment of huge fee is unreasonable. In support of such contention, reliance is placed upon a judgment of Hon'ble Supreme Court reported as Mahalakshmi Sugar Mills Co. Ltd. and another Vs. Union of India and others AIR 2009 SC 792.
We have heard learned counsel for the petitioner at some length, but do not find any merit in the present writ petition. Sub-Section (2) of Section 38 of the Act, authorizes compounding of offences under the Act subject to such conditions and restrictions, as may be prescribed. The conditions and restrictions in terms of sub-Section (2) have been provided by the Rules vide notification dated 09.12.2011. An unauthorized colony developed before 17.08.2007 is permitted to seek compounding of the offences subject to the conditions mentioned in the said notification, which is in terms of the legislative mandate of Section 38(2) of the Act. The state Government has exercised the power to fix fee vide notification dated 15th April, 2011.
The notification inserting Rule 31 is in terms of the authority of the Statute, as provided in sub-Section (2) of Section 38 of the Act, which permits compounding of offences punishable under the Act subject to such conditions and restrictions. The conditions and restrictions are the one prescribed by insertion of Rule 31. Rule 31(3)(a) has left it to the State Government to determine the amount of composition fee. Such fixation of fee is in exercise of the powers conferred under Rule 31(3)(a) of the Rules C.W.P. No.291 of 2012 6 fixing the fee as Rs.40,000/- for per gross acre and Rs.400/- for per sq. yard for saleable area. Thus, the notification dated 15.04.2011 is in exercise of the powers conferred on the State Government under Rule 31(3)(a).
We do not find any merit in the argument that compounding fee, which can be charged, is only the compounding fee of Rs.40,000/- per gross acre and not the other charge for Rs.400/- per sq. yard. The compounding fee is bifurcated into two parts i.e. per gross acre and for the saleable area. Such determination of compounding fee is in keeping in view the saleable area, which the unauthorized colonizer has sold and also for the gross area. The saleable area has to be less than the gross area for the reason that the colonizer has to make provision of parks, roads and other common amenities. Therefore, the other charges of Rs.400/- per sq. yard has reasonable nexus with the objective to be achieved, as the violation of the Act is carving out of a colony in violation of the Statute i.e. by selling plots without obtaining licence under the Act. The compounding fee and the other charges though mentioned in two different columns, but are part of fee for compounding of offences. It is method of calculation of the compounding fee, which is prescribed in the notification issued in exercise of the powers vested in the State Government under Section 38(2) read with Rule 31(3)(a) of the Rules.
The judgment in Mahalakshmi Sugar Mills Co. Ltd. case (supra) referred to by the learned counsel for the petitioner is not applicable to the facts of the present case. Learned counsel for the petitioner has relied upon para 53 of the said judgment, which describes the grounds on which subordinate legislation can be questioned. Ground (e) is that such subordinate legislation is not reasonable. Mere quantification of the C.W.P. No.291 of 2012 7 compounding fee at the rate of Rs.400/- per sq. yard for the saleable area cannot be said to be unreasonable. The quantification of compounding fee cannot be made subject matter of judicial review. Such fee is part of the legislative discretion, which includes the discretion of the delegated legislation keeping in view the doctrine of wednesbury and proportionality.
In Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others (2010) 6 SCC 614, the Hon'ble Supreme Court held as under:
"Wednesbury and Proportionality
36. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to `assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit C.W.P. No.291 of 2012 8 review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows :
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
39. The Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker."
In view of the principles of law, We do not find that composition fee is so unreasonable or unproporationate, which requires interference by this court in its power of judicial review.
Consequently, the present writ petition is dismissed.
(HEMANT GUPTA) JUDGE (A.N.JINDAL) 05.01.2012 JUDGE Vimal